P. v.
Filed 6/20/13 P. v. Redding CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
BILLY RAY REDDING,
Defendant and
Appellant.
2d Crim. No.
B237901
(Super. Ct.
No. PS027014)
(Ventura
County)
Billy Ray Redding
appeals from the judgment and order committing him as a
the meaning of the Sexually Violent Predators Act. (Welf. & Inst. Code, § 6600 et seq.,
Act or SVP Act.) He contends the SVP Act
violates his right to equal protection under both the state and federal
constitutions because it treats SVPs differently from those involuntarily
committed for treatment as mentally disordered offenders (MDOs) and those found
not guilty by reason of insanity (NGIs).
He further contends the Act violates his right to due process, double
jeopardy protections and the constitutional prohibitions against
We have considered these
arguments in light of our Supreme Court's recent opinion in
final opinion on remand in the same case, People
v. McKee (2012) 207 Cal.App.4th 1325 (McKee II), and the parties' supplemental letter briefs addressing
that opinion. We concur with the holding
in McKee II. In doing so, we join the Courts of Appeal in
G044963) ___ Cal.App.4th ___ [2013 WL 1246831], People v. Landau (2013) 214 Cal.App.4th 1,
Cal.App.4th 1076, and People v.
McKnight (2012) 212 Cal.App.4th 860, in holding that the SVP Act's
provisions concerning the indeterminate commitment of SVPs and the allocation
of the burden of proof do not violate the equal protection rights of the person
named in the SVP petition. Accordingly,
we affirm the order of the trial court committing appellant to the custody of
the Department of Mental Health (DMH) as an SVP.
Facts
Appellant does not
contest the trial court's finding that he meets the statutory definition of an
SVP. Rather, he contends the SVP Act
violates his federal and state constitutional
rights to equal protection because it treats SVPs differently from mentally
disordered offenders (MDOs) and persons found not guilty by reason of insanity (NGIs). Consequently, we provide only a very brief
summary of the facts.
The parties stipulated
at appellant's nonjury SVP recertification trial that appellant meets the first
statutory criteria for an SVP commitment because he has been convicted of more
than one qualifying sex crime. Two
clinical psychologists, Jeremy Coles, Ph. D. and Dr. Robert Owen, Ph. D.,
evaluated appellant and diagnosed him with two mental disorders: paraphilia not otherwise specified (sex with
nonconsenting partners) and a personality disorder with anti-social and
narcissistic traits.
name="_ftnref1" title="">[1] Both also concluded that appellant posed a
high risk of sexually reoffending.
Seven hospital staff
members testified on behalf of appellant.
None of the witnesses opined that he was ready for release, but they
described his positive behavior in the hospital and his participation in
treatment. The defense witnesses
assessed appellant's risk of reoffending to be lower than the evaluators had.
At the conclusion of the
nonjury trial, the trial court found that appellant continues to qualify as an
SVP. The trial court ordered appellant
committed to the Department of Mental Health ("DMH") for an
indeterminate term.
Discussion
As our Supreme Court
explained in McKee I, California
voters approved Proposition 83 in 2006, amending the SVP Act to change the SVP
commitment "from a two-year term, renewable only if the People prove to a
jury beyond a reasonable doubt that the individual still meets the definition
of an SVP, to an indefinite commitment from which the individual can be
released if he proves by a preponderance of the evidence that he no longer is
an SVP." (McKee I, supra, 47
Cal,4th at pp. 1183-1184.) SVPs are thus
treated differently from MDOs and NGIs, raising equal protection concerns for
our Supreme Court. It concluded: "[T]he state has not yet carried its
burden of demonstrating why SVPs, but not any other ex-felons subject to civil
commitment, such as mentally disordered offenders, are subject to indefinite
commitment . . . . [W]e
remand to the trial court to permit the People the opportunity to justify the
differential treatment in accord with established equal protection
principles." (Id. at p. 1184.)
On remand, the trial
court held a 21-day evidentiary hearing and concluded the state had carried its
burden to justify the disparate treatment of SVPs. That judgment was affirmed by the Court of
Appeal in McKee II, supra, 207 Cal.App.4th 1325). Appellant urges us to reject the legal
analysis in McKee II as "badly
flawed" and to conclude instead that the SVP Act violates his right to
equal protection because it treats SVPs differently from MDOs and NGIs without
adopting the least restrictive means available to address the state's
compelling interests in public safety and the humane treatment of the mentally
ill. We recognize that we are not bound
by McKee II. (Sarti
v. Salt Creek Ltd. (2008) 167 Cal.App.4th 1187, 1193 ["there is
no horizontal stare decisis in the California Court of Appeal"].) However, we are persuaded by its equal
protection analysis and adopt it as our own.
The Court of Appeal in
evidence presented to the trial court.
Among other things, the evidence presented in McKee II supported the conclusion that "victims of sex offenses
suffer unique and, in general, greater trauma than victims of nonsex
offenses." (Mcee II, supra 207 Cal.App.4th.
at p. 1342.) SVPs pose a higher risk of
sexual reoffending than do MDOs or NGIs.
Their recidivism rates are equal to, or slightly higher than those of
sex offenders who do not qualify as SVPs.
(Id.) Most SVPs are diagnosed with different mental
illnesses than are MDOs and NGIs. Their
treatment plans also differ, as do their rates of compliance and success in
treatment. (Id. at p. 1347.) "In
particular, SVP's are less likely to participate in treatment, less likely to
acknowledge there is anything wrong with them, and more likely to be deceptive
and manipulative." (
There is also evidence to support "a reasonable inference that an
indeterminate, rather than a determinate (e.g., two-year) term of civil
commitment supports, rather than detracts from, the treatment plans for
SVPs." (Id.)
After reviewing this
evidence, the Court of Appeal concluded, "[T]he People on remand met their
burden to present substantial evidence, including medical and scientific
evidence, justifying the amended Act's disparate treatment of SVP's (e.g., by
imposing indeterminate terms of civil commitment and placing on them the burden
to prove they should be released). (
1207.) The People have shown that,
'notwithstanding the similarities between SVP's and MDO's [and NGI's], the
former as a class bear a substantially greater risk to society, and that
therefore imposing on them a greater burden before they can be released from
commitment is needed to protect society.'
(Id. at p. 1208.) The People have shown 'that the inherent
nature of the SVP's mental disorder makes recidivism as a class significantly
more likely[;] ... that SVP's pose a greater risk [and unique dangers] to a
particularly vulnerable class of victims, such as children [;]' and that SVP's
have diagnostic and treatment differences from MDO's and NGI's, thereby
supporting a reasonable perception by the electorate that passed Proposition 83
that the disparate treatment of SVP's under the amended Act is necessary to
further the state's compelling interests in public safety and humanely treating
the mentally disordered. (
II, supra, 207 Cal.App.4th at p. 1347.) Having concluded that "the disparate
treatment of SVP's under the Act is reasonable and factually-based and was
adequately justified by the People at the evidentiary hearing on remand,"
the court in McKee II held the Act
does not violate the equal protection rights of SVPs. (McKee
II, supra, 207 Cal.App.4th at p. 1348.)
The court in
that the SVP Act violated the appellant's equal protection rights because it
failed to adopt the least restrictive means available to further the state's
compelling interests. Relying on
court in McKee II held, "in
strict scrutiny cases, the government must show both a compelling state
interest justifying the disparate treatment and
that the disparate treatment is necessary to further that compelling state
interest. [Citations.] We are unpersuaded that the electorate that
passed Proposition 83 in 2006 was required to adopt the least restrictive means
available (e.g., a two-year or other determinate term of civil commitment) in
disparately treating SVP's and furthering the compelling state interests of
public safety and humane treatment of the mentally disordered." (Id.
at p. 1349.)
We agree with this
analysis. This case does not involve a suspect
classification of persons based on an
immutable characteristic such as race or ethnicity. As a consequence, the "least restrictive
means" test does not apply. (See,
e.g., Connerly v. State Personnel Bd.
(2001) 92 Cal.App.4th 16, 33-35.)
It is sufficient that the means adopted by the SVP Act are a necessary
means of advancing the state's compelling interests in public safety and the
humane treatment of the mentally ill. (
465.) The evidence before the trial court
in McKee II demonstrated that the
treatment of SVPs takes longer than does the treatment of MDOs or NGIs. In addition, treatment plans for SVPs rely
less on medication and more on psychosocial interventions designed to provide
SVPs with tools to reduce their risk of sexually reoffending. (McKee
II, supra, 207 Cal.App.4th at pp. 1345-1347.) Expert witnesses at the McKee II trial also opined that the indeterminate commitment term
provided for in the SVP Act supports the treatment plan because it provides
SVPs with a greater incentive to participate in treatment. By contrast, the two-year determinate terms
often interfered with treatment because SVPs were often required to be absent
from treatment for months at time, to attend their court hearings. (Id.
at pp. 1345-1346.) This evidence
supports the conclusion that the provisions of the SVP Act are a necessary
means of advancing the compelling state interests at stake. (Id.
at p. 1349.)
Appellant further
contends the SVP Act violates his right to
due process, to be protected against ex
post facto laws and to be protected against double jeopardy. He correctly concedes these same contentions
were rejected by our Supreme Court in McKee
I and that we are bound by that decision.
Disposition
The December 9, 2011
order of commitment is affirmed.
NOT TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT, P.J.
PERREN, J.
Kevin
G. Denoce, Judge
Superior
Court County of Ventura
______________________________
Rudy Craft, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, Eric J. Kohm, Deputy Attorney General, for Plaintiff and
Respondent.
name="_ftn1" title="">[1] Coles concluded appellant had a personality disorder, not otherwise
specified, with anti-social and narcissistic traits. Owen diagnosed appellant with anti-social
personality disorder.
